In Sepehry-Fard v. Department Stores National Bank, 2013 WL 6574774 (N.D.Cal. 2013), Judge Orrick, among other things, found that a debtor had failed to properly plead negligence and TCPA claims against his credit card company. As to Negligence, Judge Orrick found:
In his negligence cause of action, plaintiff alleges that the Financial Entities harassed, intimidated and trespassed on plaintiff and his property by: (1) illegally attempting to collect the underlying credit card debt, despite plaintiff’s notice to a collections agency and the Attorney Defendants’ law firm that plaintiff contested the validity of the debt, and (2) by placing a levy on plaintiff’s bank account to collect on the resulting state court judgment in violation of California Code of Civil Procedure 703.520. AC, at 7–8. ¶ In order to state a claim for negligence, plaintiff must allege: (1) the defendant’s legal duty of care to the plaintiff, (2) breach of that duty, (3) causation, and (4) resulting injury to the plaintiff. Merrill v. Navegar, Inc., 26 Cal.4th 465, 500 (2001). As a general rule, under California law, “a financial institution owes no duty of care to a borrower when the institution’s in-volvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money.” Nymark v. Heart Fed. Sav. & Loan Ass’n, 231 Cal.App.3d 1089, 1095–96 (1991). “[L]iability to a borrower for negligence arises only when the lender actively participates in the financed enterprise beyond the domain of the usual money lender.” Id. at 1096, (internal quotations and citations omitted). But “ ‘[n]ormal supervision of the enterprise by the lender for the protection of its security interest in loan collateral is not ‘active participation’ in the financed enterprise.’ ” Id. at 1097 (quoting Wagner v. Benson, 101 Cal.App.3d 27, 35 (1980)). ¶ Plaintiff’s allegations in his negligence cause of action focus on the collection efforts of the Financial Entities, both before and after the state court judgment. There are no facts that suggest the Financial Entities’ actions went “beyond the domain” of a creditor seeking to collect on a debt. The fact that plaintiff contested the validity of the underlying debt FN3 and challenges the Financial Entities’ steps to collect on that and the resulting state court judgment, does not turn their actions into ones which create a special legal duty of care allowing plaintiff to assert a negligence claim.
As to the TCPA claim, Judge Orrick held that, although prior express consent is not an element that Plaintiff must plea, the Plaintiff’s allegations still fell short:
In the prior Order, the Court dismissed plaintiff’s TCPA claim because “plaintiff fails to specifically allege that DSNB and/or Citibank violated the TCPA and failed to identify the telephone number allegedly called.” Docket No. 36 at 9. The Court advised plaintiff that in order to state a TCPA claim, plaintiff “must identify whether the claim is asserted against DSNB or Citibank or both. Plaintiff must also identify when the allegedly illegal calls were made (the general timeframe, for example, between October and December 2012), and the phone number the calls were placed to.” Id. at 9–10. ¶ In his Amended Complaint, plaintiff has stated additional facts to support his TCPA claim. Specifically, he identifies the nature of his claim under the TCPA (that the Financial Entities used prerecorded voice messages to leave him messages); identified the general time frame for the calls (from early 2010 to late 2012); identified the phone numbers the calls were placed to (his home and cellular numbers); and iden-tified the purpose of the prerecorded calls (to harass plaintiff to collect a debt). See Amended Complaint, at 8–10. ¶ The Financial Entities argue the claim must still be dismissed because plaintiff fails to allege that the calls were “made without his consent.” Financial Entities’ Motion at 8. However, “[e]xpress consent ‘is not an element of a TCPA plaintiff’s prima facie case, but rather is an affirmative defense for which the defendant bears the burden of proof.’ ” Mashiri v. Ocwen Loan Servicing, LLC, 3:12–CV–02838–L–MDD, 2013 WL 5797584 (S.D.Cal. Oct. 28, 2013) (quoting Robbins v. Coca–Cola Company, No. 13–cv–132, 2013 WL 2252646, at *2 (S.D.Cal. May 22, 2013)). Therefore, plaintiff does not need to affirmatively allege the calls were made without his consent.FN4 [FN4. The Court notes that the TCPA exempts from liability automated or prerecorded debt collection phone calls placed to residential telephone numbers, however, the TCPA does not contain the same exemption for debt collection calls placed to cellular telephone numbers. See, e.g., Mashiri v. Ocwen Loan Servicing, LLC, 3:12–CV–02838–L–MDD, 2013 WL 5797584 (S.D.Cal. Oct. 28, 2013).] ¶ The Financial Entities also argue that these allegations still fail to state a claim because plaintiff fails to identify whether he believes Citibank or DSNB made the calls. Motion at 8. The Court agrees that plaintiff does not make it clear whether he contends that one or both of the Financial Entities and/or the Attorney Defendants were responsible for the calls and why. Plaintiff’s continued failure to state facts that would link his various claims to each defendant means that this claim must be dismissed. However, as plaintiff did allege additional facts in his Amended Complaint and the Court expects plaintiff may be able to cure the remaining deficiency, plaintiff’s TCPA claim against the Financial Entities is DISMISSED with leave to amend.