In Green v. Creditor Iustus Remedium, LLP, 2013 WL 6000967 (E.D.Cal. 2013), Judge O’Neill denied a debt collection law firm’s Motion to Dismiss, finding the Plaintiff’s Complaint to adequately state a claim under the Rosenthal Act. First, Judge O’Neill found Plaintiff’s harassment claim adequately pleaded.
Defendant next argues that Plaintiff’s factual allegations are insufficient to “prove the allegations of his complaint.” Doc. 7 at 6. The very phrasing of this argument suggests Defendant misunderstands the pleading standard. Even after Iqbal, Plaintiffs need not “prove” their allegations at the pleading stage. Rather, they must allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Here, the factual allegations are sufficient to state plausible claims under both the FDCPA and RFDCPA. The FDCPA prohibits “causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with the intent to annoy, abuse, or harass any person at the called number.” 15 U.S.C. § 1692d(5). The RFDCPA prohibits “causing a telephone to ring repeatedly or continuously to annoy the person called” and/or “communicating, by telephone or in person, with the debtor with such frequency as to be unreasonable and to constitute an harassment to the debtor under the circumstances.” Cal. Civ.Code §§ 1788.11(d) & (e). “Whether there is actionable harassment or annoyance turns not only on the volume of calls made, but also on the pattern of calls.” Akalwadi v. Risk Mgmt. Alternatives, Inc., 336 F.Supp.2d 492, 506 (D.Md.2004). In Akalwadi, for example, a FDCPA claim survived summary judgment where the record reflected “periods in which telephone calls were made on a daily basis and three telephone calls being made within five hours on the same day.” Id. The reasonableness of this volume of calls and their pattern is a question of fact for the jury.” Id. Here, it is alleged that CIR called Plaintiffs on a near daily basis for approximately two months, including some calls to Plaintiff Terry Green while she was working. Id. at ¶¶ 8–10, 14–18. This is sufficient to state a claim under the FDCPA. The FDCPA also prohibits communications that represent or imply “that nonpayment of a debt will result in the … garnishment, attachment, or sale of any property … unless such action is lawful and the debt collector … intends to take such action.” 15 U.S.C. § 1692e(4). Likewise, it is unlawful to threaten “to take action that could not legally be taken or that was not intended to be taken.” 15 U.S.C. § 1692e(5). Here, the Complaint alleges that CIR implied it could garnish Plaintiff Charles Witcher’s Social Security income, Doc. 2 at ¶¶ 21–24. This asset is not subject to garnishment. 47 U.S.C. § 407 (making it unlawful to garnish Social Security income). This is sufficient to allege violations of sections 1693e(4) and (5). California’s RFDCPA provides that any violation of FDCPA is also a violation of RFDCPA. Cal. Civ.Code § 1788.17. Therefore, adequately pled allegations of a violation under FDCPA constitute adequately pled allegations of a violation under RFDCPA. See McNichols v. Moore Law Grp., 2012 WL 667760 (S.D.Cal. Feb.28, 2012).
Judge O’Neill then engaged in a lengthy analysis of whether the law firm, as opposed to its lawyers, were subject to the RFDPA. Ultimately, Judge O’Neill followed Huy Thanh Vo v. Nelson & Kennard, 931 F.Supp.2d 1080, 1087–94 (E.D.Cal.2013) and found that the law firm was not exempt from the RFDCPA.