In Beard v. Sentry Credit, Inc., 2012 WL 3778880 (E.D.Cal. 2012), Judge Mueller partially granted summary judgment on Plaintiff’s FDCPA harassment claim. Judge Mueller found that the call volume and pattern did not support a claim of harassment.
Plaintiff later estimated that Sentry called her at least seven times per day, every day over the course of months (Id. at 28:9–12); that defendant left at least seven messages during that time (Id. at 24:15–17); that defendant called her multiple times a day on several occasions such that she “had to take the phone off the hook” (Id. at 28:18–21); and, that she told a live representative to stop calling on at least ten occasions. (Id. at 31:21–32:7.) Plaintiff argues that because the deposition testimony at one point adopts her earlier allegation that defendant placed seven calls per day over the course of five months, it is a contested fact whether plaintiff received several hundred calls. (ECF 32–3 ¶¶ 1, 2.) Plaintiff also argues that, even if her testimony is insufficient to support her estimate of several hundred calls, the testimony does indicate that defendant would occasionally call multiple times in a day and that the calls may have been more frequent than defendant claims. (Id. ¶ 3.) Plaintiff’s deposition testimony is lacking any specific details on the pattern or number of calls. On the other hand, defendant provides collection notes for plaintiff’s account indicating that it placed thirteen phone calls to plaintiff over a two-month period, with twelve phone calls unanswered. (ECF 23–4, Ex. 1.) Even if the court adopted the numbers proposed by plaintiff during deposition, in those few instances where she ventured a concrete guess, the total number of calls would approximate twenty, which is insufficient to present an issue of fact as to whether defendant called plaintiff with the intent to harass her. See Arteaga v. Asset Acceptance, LLC, 733 F.Supp.2d 1218, 1227–29 (E.D.Cal.2010) (collecting cases and finding that plaintiff receiving “near daily” calls failed to raise an issue of fact over whether the calls were harassing); see also Tucker v. The CBE Group, Inc., 710 F.Supp.2d 1301, 1305–06 (M.D.Fla.2010) (fifty-seven calls insufficient to raise triable issue of fact over harassing nature of calls).
Judge Mueller also found that the debt collector’s failure to honor an oral cease and desist neither violated the FDCPA’s cease and desist requirement (that needed to be in writing) nor did the failure to honor the oral cease and desist constitute harassment (because a mere three calls were made after the oral request).
Section 1692d provides that “a debt collector may not … harass, oppress, or abuse any person in connection with the collection of debt.” 15 U.S.C. § 1692d. As specific but not limiting examples of such harassment, Section 1692d provides that “causing the phone to ring repeatedly with intent to annoy the debtor” and failing to offer meaningful identification of the caller each violate the FDCPA. 15 U.S.C. § 1692d(5), (6). As noted above, any violation of the FDCPA constitutes a violation of the RFDCPA. CAL. CIV.CODE § 1788.17. In addition, the RFDCPA contains provisions mirroring the requirements for caller disclosure and prohibiting harassing calls. See CAL. CIV.CODE § 1788.11(b), (d). ¶ “[A] debt collector may harass a debtor by continuing to call the debtor after the debtor has requested that the debt collector cease and desist communication.” Arteaga, 733 F.Supp.2d at 1227; see also Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507 (9th Cir.1994). In addition, “[c]alling a debtor numerous times in the same day, or multiple times in a short period of time, can constitute harassment under the FDCPA.” Arteaga, 733 F.Supp.2d at 1228; see also Kuhn v. Account Control Tech., 865 F.Supp. 1443, 1453 (D.Nev.1994). However, plaintiff must present evidence of activity that naturally tends to provoke harassment. See Arteaga, 733 F.Supp.2d at 1229 (granting summary judgment because plaintiff “presents no evidence that [defendant] called her immediately after she hung up, called multiple times in a single day, called her place of employment, family, or friends, called at odd hours, or called after she re-quested [defendant] to cease calling.”). Here, construing the record in plaintiff’s favor, on the July 14 call she requested that defendant cease calling her. After that, defendant then called three more times. Plaintiff’s cease calling request was not a written request, which under the statute would have obligated defendant to stop calling. See 15 U.S.C. § 1692c(c). Based on the current record, plaintiff has failed to raise a triable fact as to whether defendant violated 15 U .S.C. § 1692d(5). Defendant’s motion for summary judgment is granted on plaintiff’s § 1692d(5) claim.