District Court (Cal.) Finds Possible Intent to Harass for Calling 22 Times After Consumer’s Answering Machine Message Put Caller on Notice that Called Party Was Not the Debtor

In Crockett v. Rash Curtis & Associates, — F.Supp.2d —-, 2013 WL 1010492 (N.D.Cal. 2013), Judge Alsup found that continuing to call after being put on notice from the answering machine message that it was the wrong person could constitute intent to harass.

Similarly here, it is reasonable to infer that Rash Curtis very likely received notice from the contents of plaintiff’s outgoing answering-machine message, as of its very first call to plaintiff’s number, that it was calling the wrong number. With this knowledge, calling at least 21 more times, in addition to leaving several messages, plausibly constitutes behavior whose natural consequence was to harass, oppress, or abuse in violation of Section 1692d. ¶  Plaintiff’s allegation that Rash Curtis called her home at least 22 times also raises a plausible inference that it intended to harass her in violation of Subsection 1692d(5). Our court of appeals has not addressed the required proof of intent to annoy, abuse, or harass under Subsection 1692d(5). District courts in this circuit, however, have generally agreed that intent may be inferred from circumstantial evidence such as the nature, pattern, and frequency of debt collection calls. See Jones v. Rash Curtis & Assoc., 2011 WL 2050195 at *4–5 (N.D. Cal. Jan 3, 2011) (Judge Jeffrey White) (collecting cases). No bright-line rule guides courts in determining which conduct fails to establish harassment as a matter of law, but courts have found call volumes similar to the 22 at issue here to state a claim for relief under this section. See Probasco v. IQ Data Int’l, 2011 WL 1807429 at *3–4 (E.D.Cal. May 10, 2011) (Judge Kimberly Mueller). Rash Curtis’s 22 calls to plaintiff raise a plausible inference of intent to harass in violation of Subsection 1692d(5). Its motion to dismiss plaintiff’s FDCPA claim is therefore DENIED.

The District Court also found that the Rosenthal Act carries the same intent element as the FDCPA and, accordingly, denied summary judgment.

Plaintiff claims that Rash Curtis violated the Rosenthal Act by: (1) causing her telephone to ring repeatedly or continuously to annoy her in violation of Section 1788.11(d), and (2) failing to comply with the FDCPA in violation of Section 1788.17. Claims under Section 1788.11(d) of the Rosenthal Act require the same proof of intent and are evaluated for specificity in the same way as claims under Subsection 1692d(5) of the FDCPA. See Arikat v. JP Morgan Chase & Co., 430 F.Supp.2d 1013, 1027 (N.D.Cal.2006) (Judge Ronald Whyte); Joseph v. JJ MacIntyre Co., LLC, 238 F.Supp.2d 1158, 1168 (N.D.Cal.2002) (Judge Edward Chen). The foregoing analysis of FDCPA Subsection 1692d(5) therefore applies to the Section 1788.11(d) claim, which accordingly survives the motion to dis-miss.