In Davis v. Hollins Law, 2013 WL 1091221 (E.D.Cal. 2013), Judge Karlton (again) found that that the “attorney” exemption from the definition of “debt collector” under the Rosenthal Act does not extend to “law firms.” Judge Karlton also found Defendants’ anti-SLAPP motion wanting because the phone calls left were not meaningfully in anticipation of litigation.
Defendant argues that it left the voicemail “in a good faith effort to collect payment on a debt owed. The challenged communication was made in anticipation of filing a collection action .” (Defendant’s Memorandum of Points & Authorities in Support of Motion to Dismiss (“Mot. To Dismiss”) 7:11–15, ECF No. 6.) In support, defendant’s attorney Asal N. Shiraz has submitted a declaration in which she avers that her firm, “as part of its debt collection efforts, files civil actions on an ordinary basis, subsequent to failed attempts to collect debts. My firm attempts to collect debts by sending letters and email and making phone calls to a debtor prior to filing such civil actions.” (Dec. Shiraz 9:9–13, ECF No. 6.) But neither the points & authorities nor the supporting declaration provide any details about when such an action was to be filed, or what event(s), if any, might trigger its filing. ¶ The challenged voicemail was left in August 2012. (Plaintiff’s Declaration in Support of Opposition to Motion to Dismiss ¶ 2, ECF No. 10–1.) As of February 19, 2013, no collection action had been filed against plaintiff. (Id. ¶ 6.) ¶ Defendant has simply failed to show that litigation against plaintiff was “under serious consideration” at the time it telephoned him.