In Petley v. San Diego County Credit Union, 2017 WL 385742, at *4–5 (S.D.Cal., 2017), Judge Miller rejected the application of California’s litigation privilege to Rosenthal Act claims arising out of filing actions on time-barred debts.
SDCCU argues that the rule set forth in Komarova is limited to cases where the two statutes conflict, and that no such conflict exists here. (Doc. No. 30 at 7.) To be sure, the court in Komarova “conclude[d] that the Act would be significantly inoperable if it did not prevail over the privilege where, as here, the two conflict.” 175 Cal. App. 4th at 340 (emphasis added). But the court did not define conflict narrowly. Instead, the court “agree[d] with the majority of [federal] cases [including Sial] that the privilege cannot be used to shield violations of the [Rosenthal] Act.” Id. at 337. The question, then, is whether filing a time-barred lawsuit is a violation of the Rosenthal Act.3 If so, the statutes conflict, and the Rosenthal Act must prevail. The court finds that the filing of a time-barred lawsuit is indeed the kind of conduct the Rosenthal Act exists to prevent. It is conduct “the natural consequence of which is to harass, oppress, or abuse [a] person in connection with the collection of a debt.” Alternatively, it may be viewed as “[t]he false representation of the…legal status of [a] debt.” Section 1788.17 of the Rosenthal Act, by incorporating the FDCPA, prohibits this behavior. Thus, even though SDCCU did not subject Plaintiff to unfair practices such as repeated phone calls and harassing behavior, it obligated her to defend an allegedly unwarranted lawsuit, which does not strike the court as much more pleasant. Moreover, it is apparent that one of the California Legislature’s goals in passing the Rosenthal Act was to prevent the use of improper lawsuits to collect on debts. This is evidenced by section 1788.15(a), which prohibits debt collectors from initiating judicial proceedings “when the debt collector knows that service of process, where essential to jurisdiction over the debtor or his property, has not been legally effected,” and section 1788.15(b), which applies the same prohibition to wrongly venued proceedings. Cal. Civ. Code § 1788.15. Prosecuting a time-barred action is strikingly similar, and the court is “mindful of the ease” with which the goals of the Rosenthal Act could be circumvented if debt collectors were free to harass debtors with obviously time-barred lawsuits and then retreat behind the protection of the privilege. See 175 Cal. App. 4th at 340. SDCCU’s citation to (primarily pre-Komarova) cases where the litigation privilege protected actions undertaken in the context of validly initiated lawsuits does not change the court’s conclusion. (See Doc. No. 30 at 9–13.) For example, the only allegation in Nickoloff v. Wolpoff & Abramson, LLP, 511 F. Supp. 2d 1043, 1044 (C.D. Cal. 2007), concerned the sufficiency of documentary evidence connecting the chain of title of the debt—evidence that was provided during a legitimate arbitration proceeding. Similarly, in Sandoval v. Law Office of John Bouzane, 2016 U.S. Dist. LEXIS 178958, at *3 (C.D. Cal. Jan. 5, 2016), the court held that the litigation privilege protected the sending of letters in an attempt to collect on a judgment entered in (apparently uncontroversial) prior litigation. And in Taylor v. Quall, 458 F. Supp. 2d 1065, 1067–68 (C.D. Cal. 2006), the court did not engage in any analysis regarding whether the Rosenthal Act and litigation privilege conflicted, instead basing its decision on inapposite authority presented by the plaintiff. The closest factual case cited by SDCCU is Lopez Reyes v. Kenosian & Miele, LLP, 525 F. Supp. 2d 1158, 1165 (N.D. Cal. 2007), but given that Lopez Reyes predates Komarova and is one of a class of cases this court previously declined to follow in Sial, 2008 WL 4079281, at *5, the court declines to follow it now. Finally, with due respect, the court opts not to follow the two decisions cited by SDCCU that arise out of this district. In Boon v. Prof’l Collection Consultants, 958 F. Supp. 2d 1129, 1132 (S.D. Cal. 2013), the court applied the litigation privilege to a Rosenthal Act claim premised on a time-barred state court action, but cited only pre-Komarova district court cases. In Ordinario v. LVNV Funding, LLC, No. 13cv2804 LAB (NLS), 2016 WL 852843, at *2 (S.D. Cal. Mar. 4, 2016), appeal filed, No. 16-55417 (9th Cir. Mar. 17, 2016), the court cited only Boon and Taylor to support its one-sentence holding that “[u]nder California law, when the only collection method used to collect a debt is litigation, the litigation privilege bars the claim.” These two cases, along with Sandoval, discussed above, appear to be the only federal court decisions since Komarova that have applied the litigation privilege to Rosenthal Act claims. All other cases have rejected that approach. See, e.g., Huy Thanh Vo, 931 F. Supp. 2d at 1097 (noting in 2013 that following Komarova, “not a single federal court has found Rosenthal Act claims to be barred by the litigation privilege”); Welker, 699 F. Supp. 2d at 1174; Holmes, 966 F. Supp. 2d at 937. Given this weight of recent authority, the California Court of Appeal’s opinions in Komarova and Persolve, and this court’s own decision in Sial, the court holds that the litigation privilege and Rosenthal Act conflict in this case and, consequently, the Rosenthal Act must prevail.