In Branco v. Credit Collection Services Inc., 2011 WL 3684503 (E.D.Cal. 2011), Judge Damrell ruled on a number FDPCA/Rosenthal Act claims.  The highlights related to the number of calls relevant to a harassment claim and to the standard applicable to proof of ‘actual damages’ under the Rosenthal Act.  As to the harassment claim, Judge Damrell held that: 


In the context of collection calls, “[w]hether there is an actionable harassment or annoyance turns not only on the volume of calls made, but also on the pattern of the calls.” Joseph v. J.J. MacIntyre Companies, 281 F.Supp.2d 1156, 1168 (N.D.Cal.2002). For example, where the “collection agency’s employees had made more than 90 calls to consumer’s home, the content of the calls had been harassing in nature, employees had failed to identify themselves when called, had allowed the phone to ring repeatedly and called back immediately after consumers hung up the phone raised fact issues as to whether employees’ conduct was offensive, precluding summary judgment.” Arteaga v. Asset Acceptance, LLC, 733 F.Supp.2d 1218, 1227 (E.D.Cal.2010). Moreover, the court looks to whether the calls were made to debtor’s work place or to debtor’s residence at inconvenient hours. Id. Finally, the court looks to the number of calls made and whether the calls were made numerous times in the same day or within a short period of time. Id.   None of the egregious types of conduct identified above are present in this case. Plaintiff presents no evidence that defendant called his place of employment, called at odd hours, called continuously, or conveyed any misleading information. Moreover, there is no evidence defendant caused plaintiff’s telephone to ring continuously or repeatedly engaged any person in telephone conversations with the intent to annoy or harass. 15 U.S.C. § 1692d(5). Indeed, defendant never actually spoke with anyone, it merely left messages at the phone number its client provided it to contact plaintiff.     Numerous courts construing Section 1962d have held that more egregious conduct on behalf of credit collection agencies is not sufficient to maintain a viable claim under Section 1962d. For example, this court, in Arteaga, held that “ ‘daily’ calls alleged by [plaintiff] failed to raise a genuine issue of material fact as to whether the communications were so frequent as to be unreasonably or to constitute harassment under the circumstances.”; in Arteaga, 733 F.Supp.2d at 1229; see also Jiminez v. Accounts Receivable Mgmt., Civ No 09–970, 2010 WL 5829206 at *6 (C.D.Cal.2010) (granting defendant collection company summary judgment because there was no evidence of defendant’s intent to annoy, abuse or harass where defendant placed sixty-nine calls over a 115 day period, placed more than two calls in a day, but did not make calls to defendant’s work, and never received a response to defendant’s voice messages); compare Joseph, 281 F.Supp.2d at 1156 (N.D.Cal.2003) (holding that 75 calls made to plaintiff’s residence created genuine issue of fact as to whether collector’s calls were part of a pattern of harassing conduct; Horkey v. J.V.D.B. & Associates, Inc., 333 F.3d 759 (7th Cir.2003) (upholding statutory damages under § 1692d for collection agency’s phone calls to plaintiff at her place of employment).     Similarly, here, fourteen calls over a period of four months, where the majority of the calls were placed approximately once every seven days is not sufficient to establish that “the natural consequence” of defendant’s calls was to “harass, oppress or abuse” plaintiff. (DUF ¶ 18.) On these facts, “the [c]ourt concludes that any reasonable juror would only find that [defendant] placed its calls to [p]laintiff with the intent to reach [him] to collect the [d]ebt, and not because it intended to annoy, abuse, or harass [him].”   Jiminez, 2010 WL 5829206 at *6.     Moreover, plaintiff’s own actions, or lack thereof, supports granting defendant summary judgment on this claim. More specifically, neither plaintiff nor the other residents of the home ever returned any of defendant’s calls. See Tucker v. The CBE Group, Inc., 710 F.Supp.2d 1301 (M.D.Fla.2010) (granting debt collector defendant summary judgment were defendant made 57 calls to plaintiff, including seven calls in one day, because the debt collector never spoke to the debtor, was never asked to cease calling, and never called back on the same day it left a message.)


As to plaintiff’s proof of emotional distress damages, Judge Damrell explained: 


Under the more lenient approach, courts have concluded that an FDCPA plaintiff does not need to meet state law standards for IIED in order to recover emotional distress damages for an FDCPA violation. See e.g., Panahiasl v. Gurney, Civ. No. 04–4479, 2007 WL 738642 at *1 (N.D.Cal.2007); see also Foster v. D.B.S. Collection Agency, Civ. No. 01–514, 2006 WL 3491867 (S.D.Ohio 2006); McGrady v. Nissan Motor Acceptance Corp., 40 F.Supp.2d 1323, 1338–39 (M.D.Ala.1998). Under this approach, courts instead have analogized the FDCPA to the Fair Credit Reporting Act (“FCRA”). Panahiasl, 2007 WL 738642 at *1–2. “Under the FCRA, a statutory scheme very similar to the FDCPA, a plaintiff who proves a violation of the [A]ct is entitled to actual damages for emotional distress aris-ing from the violation, without first having to prove a right of action under state law.” Id. at *2. Applying this rational, courts hold that when a violation of the FDCPA has been established, actual damages for emotional distress can be proven independently of state law requirements; a plaintiff need not prove state law tort elements to be compensated for their emotional distress. Id. However, a plaintiff must demonstrate more than transitory symptoms of emotional distress and unsupported self-serving testimony by a plaintiff is not sufficient. Wantz v. Experian Info. Systems, 386 F.3d 829, 834 (7th Cir.2004); Cousin v. Trans Union Co., 246 F.3d 359, 371 (5th Cir.2001).    Alternatively, other courts require a plaintiff to prove a claim for IIED under state law in order to collect damages for emotional distress. See Pflueger v. Auto Finance Group, Inc., 1999 WL 33738434 at *4 (C.D.Cal.1999); cf. Carrigan v. Central Adjustment Bureau, Inc., 502 F.Supp. 468, 470–71 (N.D.Ga.1980) (holding plaintiff’s claim for intentional infliction of mental distress arising from violations of the FDCPA met state requirements under Georgia tort law); Venes v. Professional Service Bureau, Inc., 353 N.W.2d 671, 674–75 (Minn.Ct.App.1984) (finding plaintiff satisfied state elements of IIED and could thus recover emotional distress damages.) Under California law, to prove a claim for IIED, a plaintiff must show: (1) extreme and outrageous conduct by the defendant; (2) with intent to cause plaintiff emotional distress; (3) severe emotional distress suffered by plaintiff; and (4) defendant’s conduct actually and proximately caused plaintiff’s severe emotional distress. See Davidson v. City of Westminster, 32 Cal.3d 197, 209, 185 Cal.Rptr. 252, 649 P.2d 894 (1982) (enumerating elements of IIED under California law); see also Pflueger, 1999 WL 33738434 at *4 (listing elements of IIED plaintiff must prove to succeed in claims arising under FDCPA and RFDCPA).    This court finds persuasive those cases requiring a plaintiff to establish the elements of a claim for IIED under state law in order to sustain a claim for emotional distress damages under the FDCPA and RFDCPA. First, Section 1692 et seq. contains no indication Congress intended to create a more lenient IIED standard in enacting the FCDPA. Moreover, the FDCPA expressly requires definable actual damages to recover above and beyond statutory limit. 15 U.S.C. § 1692k(a)(1). The court finds that the standards for a state IIED claim establish rational standards that ensure that the alleged damages are actual and quantifiable.