In Davis v. Hollins Law, — F.Supp.2d —-, 2014 WL 2619651 (E.D.Cal. 2014), Judge Karlton held a bench trial and awarded $250 in statutory penalty under the FDCPA, but nothing under the Rosenthal Act, due to the difference in statutory language between the two statutes. Judge Karlton awarded, however, $35,813.30 in attorneys’ fees to Plaintiffs’ counsel as the prevailing party in the case.
Plaintiff Michael Davis sued defendant Hollins Law, A Professional Corporation, alleging violations of the federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692–1692p (“FDCPA”) and California’s Rosenthal Fair Debt Collection Practices Act, Cal. Civ.Code §§ 1788–1788.33 (“Rosenthal Act”). The gravamen of plaintiff’s complaint was that defendant placed collection calls to his home phone, and left a voicemail message which failed to disclose that the communication was from a debt collector, thereby violating both statutes. ¶ On April 15, 2014, a bench trial was held in this matter, where plaintiff was represented by Matthew Rosenthal, and defendant by Kathleen Hollins and Tamara Heathcote. At the and the Rosenthal Act. The court deferred its ruling on damages, and directed plaintiff to file a petition for attorney’s fees. The court will now turn to these issues. . . . Plaintiff seeks statutory damages of $1000.00 under each of the FDCPA and the Rosenthal Act, for a total of $2000.00. A. Damages under the FDCPA. 1. Standard. The FDCPA provides for statutory damages. “[A]ny debt collector who fails to comply with any [ FDCPA] provision … with respect to any person is liable to such person in an amount equal to the sum of … any actual damage sustained by such person as a result of such failure [and] in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000….” 15 U.S.C. § 1692k(a)(1), (2)(A). The Ninth Circuit has held that courts must award FDCPA statutory damages on proof of violation. “The FDCPA’s statutory language makes an award of fees mandatory.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir.2008) (citing Tolentino v. Friedman, 46 F.3d 645, 651 (7th Cir.1995), cert. denied, 515 U.S. 160 (1995)). No proof of actual damages is required to support an award of statutory damages. Baker v. G.C. Servs. Corp., 677 F.2d 775, 780 (9th Cir .1982). Plaintiff seeks only statutory damages herein.
Judge Karlton noted that the Rosenthal Act, unlike the FDCPA, does not afford an automatic assessment of a statutory penalty (the amount of which is determined by intent), but instead requires intent as a pre-requisite before any penalty can be awarded.
The Rosenthal Act, like the FDCPA, provides for both actual and statutory damages. But unlike the FDCPA, the Rosenthal Act premises any award of statutory damages on the defendant’s state of mind: Any debt collector who willfully and knowingly violates this title with respect to any debtor shall, in addition to actual damages sustained by the debtor as a result of the violation, also be liable to the debtor only in an individual action, and his additional liability therein to that debtor shall be for a penalty in such amount as the court may allow, which shall not be less than one hundred dollars ($100) nor greater than one thousand dollars ($1,000). Cal. Civ.Code § 1788.30(b). Accord Yu v. Signet Bank/Virginia, 69 Cal.App.4th 1377, 1395–96, 82 Cal.Rptr.2d 304 (1999) (“The [ Rosenthal] Act provides for recovery in an individual action of … a fine of $100 to $1,000 if the creditor’s violation is willful and knowing.”) (citing Cal. Civ.Code § 1788.30(b)). At trial, plaintiff failed to show, by a preponderance of the evidence, that defendant acted “wilfully and knowingly” in leaving the subject voicemail. Accordingly, plaintiff is not entitled to statutory damages under the Rosenthal Act.