In Holmes v. Electronic Document Processing, Inc., 2013 WL 4456544 (N.D.Cal. 2013), Judge Koh found that an FDCPA/Rosenthal Act claim predicated on ‘sewer service’ of process was not protected by the litigation privilege.
Next, Defendants argue that Plaintiff’s claim under the Rosenthal Act is barred by California’s litigation privilege, California Civil Code § 47(b). Mot. to Dismiss at 10. Section 47(b) of the California Civil Code provides in relevant part that, “[a] privileged publication or broadcast is one made … [i]n any … judicial proceeding….” Cal. Civ.Code § 47(b). Defendants argue that the alleged filing of a false proof of service constitutes a “privileged communication” made in a judicial proceeding, and thus falls within the scope of California’s litigation privilege. ¶ The California Supreme Court has held that the litigation privilege “applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” Rusheen v. Cohen, 37 Cal.4th 1048, 1057 (2006). “The purposes of section 47, subdivision (b), are to afford litigants and witnesses free access to courts without fear of being harassed subsequently by derivative actions, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, to give finality to judgments, and to avoid unending litigation.” Komarova v. Nat’l Credit Acceptance, Inc., 175 Cal.App. 4th 324, 336 (2009) (quoting Rusheen, 37 Cal.4th at 1063) (internal quotation marks omitted). “To effectuate these purposes, the litigation privilege is absolute and applies regardless of malice.” Id. Consequently, in Rusheen v. Cohen, the California Supreme Court denied an abuse of process claim and held that, “where the gravamen of the complaint is a privileged communication (i.e., allegedly perjured declarations of service) the privilege extends to necessarily related acts (i.e., act of levying). 37 Cal.4th at 1062. ¶ However, courts have recognized exceptions to the litigation privilege under statutes that: “(1) are ‘more specific’ than the privilege, and (2) would be ‘significantly or wholly inoperable’ if the privilege applied.” Komarova, 175 Cal.App. 4th at 337 (quoting Action Apartment Ass’n, Inc. v. City of Santa Monica, 41 Cal.4th 1232, 1246 (2009)). Until recently, California state courts had not discussed whether the litigation privilege applies to actions brought under the RFDCPA, and federal district courts were divided on the issue. See id. (citing each line of conflicting district court cases). ¶ To support Defendants’ assertion that the litigation privilege applies here, Defendants cite the minority line of district court cases which stand for the proposition that a claim brought under the RFDCPA is barred by California’s litigation privilege. See Reply Supp. Mot. to Dismiss at 4–5 (citing Lopez Reyes v. Kenosian & Miele, LLP, 525 F.Supp.2d 1158 (N.D.Cal.2007), which held that the RFDCPA claim was not exempt from California’s litigation privilege because the claim was based exclusively on communications made within judicial proceedings), see also id. (citing Nickoloff v. Wolposs & Abramson, LLP, 511 F.Supp.2d 1043 (C.D.Cal.2007), and Taylor v. Quall, 458 F.Supp.2d 1065 (C.D.Cal.2006), for the same general proposition). Defendants also rely heavily on Rusheen v. Cohen for the proposition that the litigation privilege applies to actions taken in collecting a judgment. See Mot. to Dismiss at 11. Yet, while Rusheen discussed the litigation privilege generally, it did not involve an RFDCPA claim. Thus, Rusheen is distinguishable from the instant action on that basis. See Rusheen, 37 Cal.4th 1048. ¶ However, the California Court of Appeal in Komarova v. Nat’l Credj Acceptance, Inc., 175 Cal.App. 4th 324 (2009), clarified the issue by adopting the majority viewpoint that the litigation privilege does not bar RFDCPA claims. Id. at 337–338; see also Santos v. LVNV Funding, LLC, No. 11–02683, 2012 WL 216398, at *2–3 (N.D.Cal. Jan. 24, 2012) (citing Komarova to support the finding that the litigation privilege does not apply to RFDCPA claims); see also Blackburn v. ABC Legal Servs., Inc., No. 11–01298, 2011 WL 8609453, at *2–3 (N.D. Cal. June 16, 2011) (“[T]he Court follows Komarova and holds that the litigation privilege does not apply to bar Plaintiff’s claim under the Rosenthal Act.”). Specifically, the Komarova Court held “that the [litigation] privilege cannot be used to shield violations of the [RFDCPA]” when the two statutes conflict. Komarova, 175 Cal.App. 4th at 337–338. In so doing, the Court of Appeal in Komarova reasoned that applying the privilege “would effectively vitiate the Rosenthal Act and render the protections it affords meaningless.” Id. at 338. Therefore, the Court of Appeal “applie[d] the familiar principle of statutory construction that, in cases of irreconcilable conflict, the specific statute prevails over the general one.” Id. (quoting Oie v. N. Star Capital Acquisitions, L.L.C., 486 F.Supp.2d 1089, 1100 (C.D.Cal.2006)). Here, the litigation privilege similarly conflicts with the RFDCPA as applied in this action, because the privilege would completely shield Defendants from liability for the improper collection of debt. ¶ Nevertheless, Defendants maintain that Komarova is not controlling in the instant action. See Reply Supp. Mot. to Dismiss at 5. Defendants argue that neither Komarova nor any “of the cases cited by Plaintiff where the court denied application of the litigation privilege to state law claims involved cases where the entirety of the alleged conduct took place within the context of litigation such as the filing of a false proof of service.” Reply Supp. Mot. to Dismiss at 5. ¶ Notably, “[t] he California Supreme Court has not ruled on the issue of whether the litigation privilege bars Rosenthal Act claims founded on unfair debt collection practices that occur during the course of litigation.” Huy Thanh Vo v. Nelson & Kennard, ——F.Supp.2d–––, 2013 W L 1091207, at * 14 (E.D.Cal. Mar. 15, 2013). Nevertheless, the Court finds significant that since the issuance of Komarova – the sole published decision by a California appellate court to address the litigation privilege in the context of the RFDCPA – not “a single federal court has found Rosenthal Act claims to be barred by the litigation privilege.” Id. at * 14. In fact, district courts have generally interpreted Komarova as holding broadly that “[t] he California litigation privilege … does not apply to RFDCPA violations.” Santos, No. 11–2683, 2012 WL 216398, at *3; see Blackburn, No. 11–01298, 2011 W L 8609453, at *2 (“The California Court of Appeal … held that the litigation privilege does not apply to bar claims under the Rosenthal Act.”). The Court also finds the reasoning of Komarova to be persuasive in light of the fact that the RFDCPA is a remedial statute, and thus “should be interpreted broadly in order to effectuate its purpose.” Komarova, 175 Cal.App. 4th at 340 (internal quotation marks and citations omitted); see generally People ex rel. Lungren v. Superior Court, 14 Cal.4th 294, 313 (1996) (“civil statutes for the protection of the public are, generally, broadly construed in favor of that protective purpose”); see also Welker v. Law Office of Horwitz, 626 F.Supp.2d 1068, 1072 (S.D.Cal.2010) (“[T]he Court finds ample authority that the [California litigation] privilege should not be applied to claims arising under the FDCPA or California’s Rosenthal Act.”). ¶ For the foregoing reasons, the Court declines to dismiss Plaintiff’s RFDCPA claim as barred by the litigation privilege.FN5 Accordingly, the Court DENIES Defendants’ Motion to Dismiss. [FN5. In addition, it is well established that “[t]he California litigation privilege … does not apply to FDCPA claims.” Santos, Case No. 11–02683, 2012 WL 216398 (citing Welker, 626 F.Supp.2d at 1072). Moreover, the litigation privilege also conflicts with and would nullify the UCL. “[B]ecause Plaintiff’s [ UCL] claim is premised on violations of the Rosenthal Act … and on violations of the FDCPA, a federal claim to which California’s litigation privilege is inapplicable, Plaintiff’s [ UCL] claim is not barred by the litigation privilege either.” Blackburn, 2011 W L 8609453, at * 2–3 (following Komarova )].